Craig, by Lord Stair,† by Sir George Mackenzie, by Lord Bankton, and by Mr. Erskine. And accordingly, some of the old grants by this tenure, which are still extant, and particularly some of the grants by the Church, describe the rights as being made in feu-farm vel emphyteusin. Under this tenure land is free from the trammels of feudalism. The superiority, or dominium directum—the property, or dominium utile, and the mid-superiority, when it exists-can each be sold by its own owner at his pleasure, without the consent of the other parties to the contract. But although this be the case, the right of a purchaser has two inherent qualifications arising from the very nature of this tenure which, as they affect the commercial character of the right, require attention. One of these is, that as the rights of the parties are constituted by a mutual contract, the consequence is that the prestations on each side are counterparts and conditions of the prestations on the other side, and a purchaser of the right of either of the parties comes into the place of the seller in that contract, and is liable to perform all the conditions which, by the contract, were prestable by the seller. The right which passes to the purchaser passes with the burdens, as well as with the privileges, which were attached to it by the original contract. The other qualification of the right is, as I have already stated, that it is not an entire right of property, or plenum dominium. The distinguishing peculiarity of the tenure is that by the original contract the right of property or dominium in the land is decomposed, and belongs partly to the grantor and partly to the grantee. The dominium directum reserved by the grantor entitles him to enforce payment or performance of the annual return prestable to him, and also to resume the entire right in the event of that condition being contravened; the remainder of the right or dominium utile conferred upon the grantee entitles him to the exclusive possession, management, and produce of the subjects, on condition of his making the stipulated annual return. There was a controversy among the Roman jurists whether the category under which the contract of emphyteusis ought to be classed was sale or location, being what we call lease; and whether the right of the emphyteuta (or feuar, as we call him) was owner or lessee of the subject. The truth appears to be that it was a combination of some of the elements of both of these commercial contracts. Some French writers, in analysing this tenure, suggest-and the suggestion *B. 1. T. 9. S. 20. † B. II. T. 3. S. 34. Obs. on Statute 1457, c. 71. § II. 3. 53. appears to me to have much force-that in this combination are included some elements not only of the contracts of sale and of location, or lease, but likewise of the contract of partnership -the superior being in some respects in the position of a sleeping partner or commanditaire, by providing the original stock, and being secured in a fixed annual return as his share of the profits, but without having any participation in the management; and the feuar being in the position of a managing partner or gerant-all the trouble and expense of management, all the profits beyond the fixed yearly return prestable to the grantor, and all the loss, being attached to his share. But the constitution of the Emperor Zeno put an end to such speculative disputes by creating the right of a separate legal tenure, under which, not indeed the material subject, but the incorporeal right itself, is partitioned between the contracting parties. And, accordingly, it is a settled principle in our own jurisprudence, as it ultimately was in that of the Romans, that the right of each of the parties is a perpetual, although a qualified, right of property. And this legal characteristic of the tenure is of great importance in rendering land available for the purposes for which it may be best adapted. In cases where the owner himself has not the capital or other means, or the inclination, so to employ his property, and yet does not wish to part with it, he can obtain the value of its capability for such purposes, by feuing it for a fixed annual return corresponding to its marketable value,-to other parties who have the means and the inclination to make the expenditure which may be requisite for accomplishing these purposes; and that expenditure is made freely, in the knowledge that the benefit arising from it will belong exclusively, and for ever, to himself and his successors. But while these qualifications of the rights of parties appear to be inherent in, and inseparable from, this tenure, there are adhering to it in Scotland some other things, which might perhaps be advantageously and safely modified or dispensed with as prejudicially affecting land as a marketable subject. I shall mention two of them : One is the interposition of the superior, which is at present required in order to complete a purchaser's title, by either granting a warrant to infeft him, or by confirming his infeftment after it is taken. This appears to be now unnecessary. Publication in a register of the transfer from the seller to the purchaser, is the appropriate and the only solemnity which is necessary for that purpose. This is not now a matter of speculative opinion; for it has been proved by experience. Since the year 1845 nothing more has been required for that purpose than such publication in the Register of Sasines; and such registration has been found to be quite sufficient, in so much that the solemnity of infeftment has now been almost universally abandoned in practice. And this being the case, why should the interposition of the superior still be required? It serves no good purpose. It is worse than useless. It adds to the expense of the title. And the theory of its being necessary to complete the transfer from the buyer to the seller has given rise to a fiction that a mid-superiority is left in each seller and requires, for its defeasance, the superior's confirmation; and the subsistence and sometimes the accumulation of these fictitious mid-superiorities often create confusion in the title, and even danger to the feuar's right. Neither these fictitious mid-superiorities nor the superior's interference should be continued. In the year 1838 the commissioners who were appointed by the Crown to report on Scottish conveyancing, and who were very accomplished lawyers and conveyancers, reported in decided terms that such interposition should be dispensed with; and the time appears to have arrived when that recommendation should be carried into effect. The other amendment which suggests itself to me upon this tenure is, that the composition of a year's rent, which is payable by law, independent of contract, to the superior on the entry of a purchaser, ought to be commuted. The right of the superior to such a payment is extremely precarious; as sales may never take place, or may often occur. And as to the feuar, the effect of this casualty is pernicious, because when he expends his money or labour in improving the subjects, the superior gets the benefit of such expenditure-the year's rent being estimated according to the annual value of the subject, not as it was when the grant of it was made by the superior, but as it may be, with all its improvements, however costly these may have been, at the date of the entry. The hardship of this is well illustrated by cases where houses or other edifices are erected at a great expense. On a sale of these edifices, the year's rent which is exigible from the purchasers often greatly exceeds what was the value of even the fee-simple of the sites at the time these were feued; and so a year's return for the capital and labour expended by the feuer goes into the pocket of the superior. When the contracting parties make express stipulations in the contract as to such composition, as is now generally the case, of course effect should be given to their bargain. But when the casualty arises from the law itself, why should it not be dealt with, as the legal casualties which arose under the feudal tenure were by the Act abolishing wardholding-viz., by commuting the value of the casualty into an addition to the annual feu-duty, under judicial superintendence? As to the other Scotch tenure of blench-holding, it is not necessary to say more than that, in so far as relates to land in a commercial point of view, it is in the same predicament as the tenure of feu-farm-with this exception, which is favourable to commerce, that no annual return is made to the superior excepting something merely nominal or elusory. Notwithstanding this, the superiority may be a valuable right in other respects-as, for example, the right to work the minerals may remain attached to it. The tenures thus generally described leave commerce in land quite free. Although the right of property is split. between two or more parties, yet each holds his own share independent of the others, and has the free disposal thereof without their consent. And although the seller's right may be clogged by conventional conditions in the original contract, this cannot be avoided without creating the still greater evil of interfering with the liberty of parties to make their own bargains; and a purchaser of the right of either of the parties to a contract of feu-farm is no more entitled to complain of the conditions attached to the right by that contract, than a purchaser of shares in a joint-stock company has to complain of the conditions under which the shares were constituted by the contract of the company. The result is that the interests of commerce in land are quite consistent with our existing land tenures; but that some incidents of these tenures admit of amendment. II.—The next inquiry is: What effect is produced on land, as a subject of sale, by the existing entail law of Scotland? In the year 1848, it was estimated that from a half to a third of the territory of Scotland was excluded from commerce by entails. But a great change commenced on the 1st of August, being the term of Lammas, in that year, in virtue of a Statute passed in the preceding session of Parliament. The general effect of that measure is that in Scotland no perpetual entail either now exists, or can ever hereafter exist, if the heirs of entail to whom the entailed estates shall belong shall choose to be free from the entails. In the first place, all the entails which were subsisting at Lammas, 1848, are to become extinguishable, at the option of the heirs in possession, at the time, provided these heirs have been born subsequent to that term, or shall be born hereafter, and shall attain majority. Such heirs, when they shall be in that predicament, will have power to emancipate themselves and their successors from the fetters of the entails, and to become fee-simple proprietors; or to sell or burden the estates. They are to be entitled to place themselves in that position, under the authority of the Court of Session, by executing and recording deeds of disentail, or by selling the estates. And although some years (nearly six at least) must still elapse before any of them can be old enough to extinguish any such entail in that way; yet even in the meanwhile these old entails may be extinguished, or the entailed estates may be sold, by the existing heirs of entail in possession (even although they were born prior to Lammas 1848), if they be in either of these two predicaments, viz. :If such an heir be the only heir in existence, and be unmarried; or if he obtain the consent of a certain number of the next heirs of entail to the proceeding. With regard again to entails which have been made posterior to Lammas, 1848, or which may be made hereafter, they are to be extinguishable in the same manner, whenever the succession may open to heirs who have been, or may be born after the dates of the entails, and who shall attain majority. Such being now the state of our entail law, there is no longer, I believe, any complaint that it interferes unduly with land as a subject of commerce. It allows the owner of property a fair exercise of the power of testamentary disposal, and only restrains what has been found by experience to be an excessive and mischievous use of it. And, on the other hand, no purchaser need ever be entrapped into a purchase of an entailed estate; because the condition of the entails, besides expressly qualifying the title of every heir in possession, must be published, both in the Register of Sasines and in a separate Register of Entails. But I foresee an anomalous position into which heirs of entail may come a few years hence, when many of them will be entitled to disentail or sell the estates under the authority of the Court of Session, without the consent of any other heir. Even although they should then abstain from exercising that power, the estates will be liable to be taken in execution for their debts, in virtue of an express clause in the statute to that effect. But will sales by heirs of entail who shall be in that predicament be effectual? The statute is silent on the subject; and it is not easy to find in the statute any enactment which. would protect a sale in such circumstances. On the other hand, it is as difficult to see how such a sale could be challengeable by the subsequent heirs of entail, when the right or jus credili conferred upon them by the entail, is extinguishable by the seller at his own option. It would be well if this difficulty were obviated by the Legislature before the time shall arrive when it may emerge. Ꭰ |